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Gopalasawmy Chetty Vs. the Secretary of State for India in Council Represented by the Collector of Salem - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.955
AppellantGopalasawmy Chetty
RespondentThe Secretary of State for India in Council Represented by the Collector of Salem
Excerpt:
adverse possession - limitation--enjoyment of land for storing water--evidence of title--failure to assert right through courts--entry in government registers, evidentiary value of--orders of survey officers. - .....act. he was clearly right in holding so. there were two previous surveys in 1862, and 1878. the land in question was, on those occasions, also demarcated as belonging to government. at the paimash, the land was registered in plaintiff's name. with regard to the question of possession, it is not proved that the government exercised any act of enjoyment, except cutting some trees in 1904. that was a short time before the survey of 1907. there can be no doubt that the government set up a right to the land from the year 1862. the lower courts have found the title in favour of government on the ground that nothing was done by the plaintiff to assert his right from the year 1832. it does not appear that the plaintiff took any legal proceedings for the purpose, so that this fact must, no.....
Judgment:

1. This is a suit for the declaration of the plaintiff's title to about 18 acres of land. The cause of action alleged in the plaint is that, at a survey which took place in 1909, the Survey Officer decided that it belonged to Government and not to the plaintiff. The plaintiff is the owner of a Mittah called the Gachikana Halli Mitta. The Government is the owner of an adjoining ryotwari village, Kumbarahalli. The defendant, the Secretary of State for India in Council, denied the plaintiff's title to the land. Issues were framed relating to plaintiff's title and possession and as to whether the survey order was binding on the plaintiff. The Appellate Court held that the survey order, if wrong, was liable to be set aside in a suit brought within the time fixed by the Surveys and Boundaries Act. He was clearly right in holding so. There were two previous surveys in 1862, and 1878. The land in question was, on those occasions, also demarcated as belonging to Government. At the paimash, the land was registered in plaintiff's name. With regard to the question of possession, it is not proved that the Government exercised any act of enjoyment, except cutting some trees in 1904. That was a short time before the survey of 1907. There can be no doubt that the Government set up a right to the land from the year 1862. The lower Courts have found the title in favour of Government on the ground that nothing was done by the plaintiff to assert his right from the year 1832. It does not appear that the plaintiff took any legal proceedings for the purpose, so that this fact must, no doubt, be taken to be against him. But, if the plaintiff had effective occupation always until 1904, that will be both strong evidence of a title in pursuance of which he first took possession and conclusive of his right to the land by prescription. Now, it is not denied that the plaintiff is entitled to use the land in question for storing water. This land is admittedly continuous with the plaintiff's land. If the land admittedly constituting the bed of the plaintiff's tank and this land, were both enjoyed by the plaintiff from the time of the paimaish until 1904 and no one else exercised any act of possession over it during that period, it will be impossible to hold that the plaintiff had not exclusive possession. An attempt has been made here to suggest that the land in question was not enjoyed as part of the tank and that the water merely spread over it when there was more than could be held by the bed proper. But, we find absolutely no evidence that water flowed into the land in question only during some portions of the year or during times of flood. On the evidence it must be held that both the admitted land of the plaintiff and land in question were enjoyed as part of what the plaintiff claimed as the bed of the tank. Giving full weight to the assertion by Government of its title from 1862 and the inaction on the part of the plaintiff to bring the matter for settlement before any legal tribunal, the fact remains that he made the only use of the land that any body did. Besides the land being occupied by the water of the tank, the plaintiff admittedly exercised the right of fishing. The Government does not claim that right. One of the witnesses, viz., the 5th witness for the defendant, spoke to the cutting of a single tree by Government about 12 years before he gave evidence. We have looked at his evidence and cannot but characterise it as absolutely worthless. He remembers absolutely no details of the transaction he speaks to. If the facts spoken to by him were true, one would expect some documentary evidence in the possession of Government to support it, but there is none forthcoming. So that, the position of matters is that the plaintiff's possession was effective and that Government exercised no act of possession whatever. On these facts, it is impossible to come to any other conclusion than that the plaintiff acquired a title to the land by prescription if it had not originally belonged to him. As we have already observed, however, his possession is strong evidence of his title, and the fact that, at the pazmasJi, the land was entered in his name, enhances its value. Entry in the Government survey account and the plan prepared by Government would, no doubt, be evidence which defendant would be entitled to rely on strongly, if it were accompanied by any substantial acts of enjoyment. Certainly, it loses its value when possession was wholly in the hands of another. The lower Courts merely found that the plaintiff had failed to prove adverse possession for 60 years, but did not go into the question of his title. We have resolved to decide the question under the powers now vested in us in second appeal and we have found it impossible to come to any other conclusion than that the title is in plaintiff. On the question of adverse possession also, as already stated, the evidence is all one way. The admitted facts conclusively prove adverse possession, except for the evidence of defendant witness No. 5 which really proves nothing. The act of Government in demarcating the land as its own property without any decision by the Survey Officers in 1862 and 1878 is not, of course, a bar to the suit. We reverse the decrees of the Courts below, and the plaintiff will have a decree declaring his title to the land. It is not necessary to set aside the Survey Officer's order as the adjudication at the survey proceedings was subject to the result of the suit instituted by the plaintiff. The plaintiff will have his costs throughout from the defendant.

2. We fixe six months as the period within which the costs should be paid.


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